Judge dissolves temporary restraining order in CVS case

March 9, 2012

CHARLES TOWN - Jefferson County Circuit Judge David Sanders dissolved a temporary restraining order prohibiting demolition of several buildings in the 300 block of West Washington Street in Charles Town following a hearing late Thursday afternoon. Sanders originally issued the order on March 2.

The order stated that the defendants - the Charles Town Historic Landmarks Commission, Clarence Haymaker, Haymaker Enterprises LLC and The Rebkee Company - were prohibited from demolishing historic buildings until a hearing could be held regarding the proposal.

The Rebkee Company, based out of Midlothian, Va., is the development firm CVS Pharmacy uses for its projects nationwide. Haymaker is the property owner and plans to sell the property for approximately $1.35 million. The HLC approved a certificate of appropriateness for the demolition in November.

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Proposed CVS Site

The lawsuit that initiated the restraining order was filed by attorneys Greg Bailey, Chris Stroech and Mark Sadd on behalf of Charles Town residents Betsy Wells and Donald Rohel.

The attorneys were also representing Citizens for Downtown Charles Town, described as "a diverse group of Charles Town and Jefferson County citizens and other organizations ... (formed) to take action to protect both Charles Town's history and its future," according to a news release from CDCT.

The lawsuit also alleged a conflict of interest because Mark Reinhart, a member of the Charles Town HLC, voted in favor of the certificate of appropriateness. Reinhart lives on North Lawrence Street, adjacent to the planned store's rear parking lot.

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Journal photo by Chris Jackson Shown are some of the vacant buildings where the new CVS in downtown Charles Town was set to begin construction. Jefferson County Circuit Judge David Sanders dissolved a temporary restraining order prohibiting demolition of several buildings in the 300 block of West Washington Street in Charles Town following a hearing late Thursday afternoon. Sanders originally issued the order on March 2.

During the hearing, Bailey said that the HLC failed to follow its own guidelines when approving the certificate of appropriateness, and that for buildings contributing to an area's historic overlay district must either be damaged by fire, deemed unsafe by an independent authority or fall into another extraordinary circumstance in order for demolition to be allowed.

Kenneth Barton, a local attorney representing The Rebkee Company and West Virginia CVS Pharmacy LLC, stated that the plaintiffs did not have sufficient standing to file the lawsuit and issue an injunction in their favor.

The plaintiffs had the standing of the general citizenry since they would not be harmed by the buildings' demolition and that their standing was not enough for a TRO to be issued, Barton said.

Local attorney Richard Gay, representing Haymaker, said during a recess in the hearing that his client had never consented to the buildings in question being part of the historic overlay district or otherwise agreed to their historic designation.

In his ruling, Sanders said the court found the plaintiffs were "without standing" to raise the issue of stopping demolition because the plaintiffs' counsel did not prove how their clients would suffer irreparable harm if the buildings were demolished.

Sanders also stated that the perceived conflict of interest should be addressed by city officials and the HLC.

Stroech said his clients were disappointed with the judge's decision following Sanders' ruling to dissolve the TRO. He added that he and Bailey would meet with their clients to discuss what steps, if any, to take going forward.

Sanders' decision could be appealed to the West Virginia Supreme Court of Appeals, Stroech added.

Gay said his client was both pleased with the ruling and surprised the plaintiffs and others had wanted to interfere with a private real estate sale.

The Rebkee Company had originally wanted to begin demolition on March 5, and the delay caused by the lawsuit and TRO has cost the company approximately $40,000, Barton said.

"We're pleased that Judge Sanders carefully reviewed case law and the argument of counsel and (for) correctly deciding the plaintiffs don't have the standing to bring this to court," Barton said.

The CVS is planned to be built where the buildings are currently located on West Washington Street. The store is estimated to be a $5 million, 13,225-square-foot project, and the new store would close two CVS stores in Charles Town and Ranson. Current employees have the option to transfer to the new store, which is expected to hire between six and 10 new employees.

The proposed CVS Pharmacy, which calls for five buildings' demolition, also attracted attention from the West Virginia Division of Culture and History. The agency expressed concerns in December over the effect of the destruction of historic buildings on the site in relation to the Charles Town historic overlay district.